Most people in Kenya do not know the difference between a bond and bail, even though they are commonly used in our courts of law.
When a person is arrested, especially in a highly publicized case, news reporters report that the accused person has either been released on a cash bail or a bond.
So, what exactly is the difference between bail and bond and what determines if you are released on one or the other?
According to MMAN Advocates, the difference between bail and bond is a subtle one, but it ultimately comes down to who and what is securing the freedom of the accused person.
Bail is an agreement between an accused person or his/her sureties and the court that the accused person will attend court when required.
If the accused person or suspect fails to attend court when required and, in addition to the court issuing warrants of arrest, the sum of money deposited as security, will be forfeited to the court.
According to the Kenya Law Reform Commission (KLRC), there are different types of bail. Bail at the police station – given to an accused person at the police station – given to an accused person before trial, Bail Pending Appeal – given to a person who was already sentenced and is waiting for the hearing of an appeal and Anticipatory Bail – given to a person pending their arrest.
Bond, on the other hand, is an undertaking between the accused, a surety and the court in which an accused or his/her surety deposits a security to vouch for attendance of an accused person in court until the final determination of the case against them.
Courts may accept the following as security documents, among others: title deeds, motor vehicle log books, pay slips, bank drafts, insurance bonds.
The KLRC says that there is no uniformity in how the courts determine whether or not to grant accused persons bail, both in terms of procedure and substance. As a result, it is difficult for accused persons to predict how their bail applications will be determined.